PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Case No: 04-3215

UNITED STATES OF AMERICA

 v.

CARL D. MCBANE,

 Appellant

 

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court No.: 03-cr-00228

District Judge: The Honorable Donetta W. Ambrose

 

Argued October 21, 2005

Before: SMITH, BECKER, and NYGAARD, Circuit Judges

(Filed: December 30, 2005)

 

Counsel: Sally A. Frick (Argued)
2

1601 Frick Building

Pittsburgh, PA 15219

Counsel for Appellant

Michael L. Ivory (Argued)

Bonnie R. Schlueter

Laura S. Irwin

Paul M. Thompson

Office of United States Attorney

700 Grant St.

Suite 400

Pittsburgh, PA 15219

Counsel for Appellee

 

OPINION OF THE COURT

 

SMITH, Circuit Judge.

Appellant Carl McBane challenges jury verdicts

convicting him of one count of selling a stolen firearm in

violation of 18 U.S.C. § 922(j) and one count of making a

materially false statement to a federal agency in violation of 18

U.S.C. § 1001. McBane also seeks resentencing in light of the

Supreme Court’s decision in United States v. Booker, 125 S.Ct.

738 (2005). For the reasons set out below, we will uphold the

jury verdicts on both the firearm and false statement charges,

and we will remand the case to the District Court for
 1

Several weeks after his first arrest, Suchoza was arrested

again for public intoxication, booked, fined and released. He

neither asked for nor was given his rifle upon his second release

from custody. 

3

resentencing.

I.

Carl McBane was employed as a full-time police officer,

with the rank of sergeant, for the borough of McKees Rocks in

Allegheny County, Pennsylvania at all times relevant to the

events described herein. On July 11, 1999, three members of

the McKees Rocks Police Department arrested Mark Suchoza.

Suchoza was booked and his personal belongings confiscated.

Among those belongings was a Henry Model Survival .22

caliber rifle. Though Suchoza was not charged with any crime

in connection with owning or possessing the rifle, it was not

returned to him when he was released from custody after paying

a fine for public intoxication.1

 At the time, McBane was one of

two weapons specialists in the department who dealt with

firearms brought into the station as evidence or as confiscated

personal items.

Gerald Smith was a local constable for McKees Rocks

and adjacent municipalities. He was also an informant for the

Federal Bureau of Investigation (“FBI”) who was cooperating

in investigations into public corruption in the municipalities in
 2

The second gun was the subject of Count Two of the

indictment (see infra, this section). The second gun was turned

over to McBane by the former owner. McBane sold the

handgun to Smith for $50 approximately one month after he had

sold Smith the rifle. The jury acquitted McBane of the knowing

theft and sale of the second gun, but the false denial at issue in

this appeal relates to both guns.

4

which he worked. Smith testified that he was “good friends”

with McBane, and that the two both worked security at bingo

events held at a local booster club. One night during the

summer of 2001, while the two were working together, McBane

showed Smith Suchoza’s rifle. Smith testified that when asked

by Smith where he got it, McBane referred to Suchoza, then

“[h]e said, well, this [rifle] was his. He said, we didn’t give it

back. I said, what are you going to do with it. He said, I am

going to sell it.” McBane then sold the rifle to Smith for $80.

Smith notified the FBI that he had purchased the rifle from

McBane, and the FBI initiated an investigation.

At the time Smith informed the FBI about the rifle,

federal agents had already received information from a

dispatcher at the McKees Rocks Police Department that

McBane had sold the rifle. The FBI received the information

from both sources in June of 2002. Thereafter, McBane

attempted to cover-up his removal and sale of the rifle and

another gun, a .22 caliber handgun.2

 He told Smith that the FBI

was asking questions about the guns and that he needed to get

them back and return them to his office at the department.
5

Smith agreed to give the guns back to McBane, but first, and

without McBane’s knowledge, Smith gave them to FBI Special

Agents who photographed them as part of the investigation. The

agents then arranged to electronically surveil Smith returning

the guns to McBane. In the meantime, McBane reimbursed

Smith for the price of the guns.

On August 26, 2002, Smith met McBane and returned the

guns to him while wearing a recording device and under

surveillance by the FBI. During that encounter, McBane made

the comment to Smith that he could now let the FBI come into

his office and see the guns.

On September 9, 2002, the same two FBI Special Agents

who had been dealing with Smith went to McBane’s house and

asked him a series of questions focused on the guns McBane had

sold to Smith. McBane told the Agents that the guns had never

been sold and had remained in the physical custody of the

department. McBane further stated that the guns were stored in

his office and that he could show them to the Agents. Later that

day, McBane showed the Agents the guns in his office at the

department. That evening, in another recorded conversation

with Smith, McBane told Smith that he had spoken to the

Agents and “told them that [the guns] had never left . . . his

office.” McBane eventually admitted selling both guns to Smith

and orchestrating the return of the guns to the office. He also

admitted to lying to the Agents about the sale of the guns.

McBane claims that he first became aware of the rifle in
 3

18 U.S.C. § 922(j) provides in relevant part:

It shall be unlawful for any person to receive,

possess, conceal, store, barter, sell, or dispose of

any stolen firearm . . . which is moving as, which

is a part of, which constitutes, or which has been

shipped or transported in, interstate or foreign

commerce, either before or after it was stolen,

knowing or having reasonable cause to believe

that the firearm . . . was stolen.

 4

Section 924(a)(2) is the penalties provision for § 922(j). It

provides in relevant part that “[w]hoever knowingly violates

subsection . . . (j) . . . of section 922 shall be fined as provided

in this title, imprisoned not more than 10 years, or both.”

6

late summer 1999 and that, weeks later, he removed it from the

“filing cabinet” on which it was sitting and put it in his office.

He also contends that he asked several individuals about the

rifle’s origins but got no knowledgeable response and that,

sometime later, he ran a computer check on the rifle to

determine if it had been stolen and found that the rifle was not

in the system. McBane kept the rifle in his office for two years

and removed it in the summer of 2001 in order to sell it to

Smith.

McBane was charged in a three-count indictment

returned on September 10, 2003. Counts One and Two charged

McBane with selling stolen firearms in violation of 18 U.S.C. §§

922(j)3

 and 924(a)(2),4 and Count Three charged him with
 5

18 U.S.C. § 1001(a)(2) provides in relevant part:

[W]hoever, in any matter within the jurisdiction

of the executive, legislative, or judicial branch of

the Government of the United States, knowingly

and willfully . . . makes any materially false,

fictitious, or fraudulent statement or

representation . . . shall be fined under this title,

imprisoned not more than 5 years . . . or both.

 6

The District Court had original jurisdiction over McBane’s

criminal trial under 18 U.S.C. § 3231. We exercise appellate

jurisdiction under 28 U.S.C. § 1291.

7

making a materially false statement in violation of 18 U.S.C. §

1001(a)(2).5

 A superseding indictment was filed on March 24,

2004. McBane pled not guilty, and a jury trial ensued which

lasted from April 12 to April 16, 2004.6

 A jury convicted

McBane on Count One for selling the rifle to Smith and on

Count Three for making the materially false statements to the

FBI. He was acquitted of selling the handgun.

The District Court denied McBane’s post-verdict motion

for judgment of acquittal on April 27, 2004. On July 30, 2004,

under the pre-Booker, mandatory regime of the United States

Sentencing Guidelines (hereinafter “Guidelines”), McBane was

sentenced to 21 months for each count, to run concurrently,

followed by two years of supervised release. McBane’s offense

level under the Guidelines included enhancements for his role
 7

As is commonly known by now, the Booker decision severed

and excised two sections of the Federal Sentencing Act, the

effect of which was to render the Guidelines advisory rather

than mandatory. As we discuss below, our disposition of

McBane’s resentencing request is determined by the facts that

(1) McBane was sentenced before the Booker decision, and (2)

he received a sentence enhancement from the District Court

under the mandatory regime.

8

in the offense and for the fact that the rifle was stolen.7 McBane

filed a timely appeal challenging the judgments of conviction

and his sentence.

II.

As to his convictions, McBane challenges the jury’s

verdicts as “not supported by the evidence.” Thus, his appeal

requires us to decide two issues: (1) whether the jury’s verdict

that McBane knowingly sold a stolen rifle is supported by

substantial evidence, and (2) whether the jury’s verdict that

McBane’s false statements to FBI Special Agents were

“material” under § 1001 is supported by substantial evidence.

Where a petitioner “challenges the sufficiency of the evidence

against him” as to particular charges and “believes that the

District Court erred as a matter of law in allowing the[] verdicts

to stand,” we “must sustain the verdict[s] if there is substantial

evidence, viewed in the light most favorable to the government,

to uphold the jury’s decision.” United States v. Beckett, 208

F.3d 140, 151 (3d Cir. 2000). We do not “weigh evidence or
9

determine the credibility of witnesses in making this

determination.” Id. Furthermore, we “must credit all available

inferences in favor of the government” in making our

determination. United States v. Riddick, 156 F.3d 505, 509 (3d

Cir. 1998).

A.

We first address the jury’s finding that McBane

knowingly sold a stolen rifle to Gerald Smith in violation of §

922(j). Most of McBane’s argument on this point fails to attack

the sufficiency of the Government’s evidence as such. Instead,

McBane merely rehashes trial evidence which he views as

favorable to him. Specifically, McBane cites evidence he

presented at trial indicating that: (1) the rifle was legitimately

seized originally; (2) its owner did not request its return; (3)

there are no written procedures in McBane’s department for

disposal of seized property that is not evidence; (4) McBane

subjectively knew neither when his ownership of the rifle

“occurred” nor the law of abandoned property. Based on these

aspects of his case at trial, McBane asserts that the Government

presented insufficient evidence that the rifle was stolen or that

McBane knew or should have known it was stolen.

The evidence McBane presents, however, does little to

undermine the Government’s case. The assertions that the rifle

was properly confiscated originally and that Suchoza never

asked for its return do not help McBane. McBane was not

involved in the rifle’s lawful confiscation, and, at all events, the
 8

We note that, even if we were to concede that Suchoza had

legally abandoned his rifle by the time McBane sold it, such a

concession would not help McBane under the law of theft in

Pennsylvania. Irrespective of Suchoza’s abandonment, the

police department had a possessory interest in the rifle superior

to McBane’s. Under Pennsylvania law, theft of movable

property is defined as an unlawful taking of “movable property

of another.” 18 Pa. C.S. § 3921. “[P]roperty of another”

“[i]ncludes property in which any person other than the actor

has an interest which the actor is not privileged to infringe . . .

.” 18 Pa. C.S. § 3901. Thus, even if Suchoza did abandon the

rifle, McBane stole the rifle because he deprived the police

department of a superior possessory interest. Analogously,

taking property from a bailee is deemed sufficient evidence of

theft even though the bailee is not the actual owner. See

Commonwealth. v. Harrison, 432 A.2d 1083, 1087 (Pa. Super.

1981).

10

issue is whether the rifle was unlawfully kept from Suchoza – or

taken from the police department – after it was lawfully

confiscated. McBane never sought to return the rifle to

Suchoza. He sold the rifle for profit without Suchoza’s

knowledge or consent, without registering the gun in his own

name, and without obtaining the consent of the police

department to sell it.8

Similarly, McBane’s defense that he lacked subjective

knowledge that the rifle was stolen fails even to address the

language in 18 U.S.C. § 922(j) indicating that McBane is liable
 9

We have not addressed the meaning of “reasonable cause to

believe” in the context of § 922(j) or a similar statute. Only the

Eighth Circuit has discussed the language meaningfully. See

United States v. Iron Eyes, 367 F.3d 781, 785 (8th Cir. 2004).

In Iron Eyes, the Court indicated that the above phrase may be

read one of two ways:

It may be read as requiring proof only that the

defendant [sold] a gun that the so-called

“reasonable person” would have believed was

stolen in the circumstances of the case. But the

better reading, we believe, requires proof that a

defendant [sold] a gun that it would have been

reasonable for him or her, in particular, to believe

was stolen.

Id. (internal citations omitted). Because this case requires us to

evaluate the evidence in the record in the light most favorable to

the Government, we conclude that McBane would lose under

either reading of the statute.

11

if he “ha[d] reasonable cause to believe” the rifle was stolen.9

His assertion that he did not subjectively know it was stolen

begs the question of whether he should have known.

For its part, the Government presented extensive

evidence at trial to support the § 922(j) charge. As to the theft

of the rifle, the Government offered, inter alia, McBane’s own

words (from Gerald Smith’s testimony at trial):
12

Smith: [W]here did you [get the rifle]?

McBane: [Y]ou remember [Suchoza]?

Smith: [Y]eah.

McBane: [W]ell, this was his. . . . [W]e didn’t give it

back.

Smith: [W]hat are you going to do with it?

McBane: I am going to sell it.

Based on this exchange, a jury could reasonably infer that the

rifle did not rightfully belong to McBane, that McBane knew as

much, and that he intended to sell the rifle anyway. The record

clearly establishes that McBane sold the rifle. As we have

indicated, our standard of review precludes us from assessing

the credibility of Smith’s testimony. The above evidence alone,

taken in the light most favorable to the Government, might well

be enough to sustain the jury’s verdict as to McBane’s knowing

sale of a stolen rifle.

The trial record, however, provides additional evidence

that supports the jury’s verdict. The McKees Rocks Public
 10The Public Safety Director is the chief of the McKees Rocks

Police Department. He is hereinafter referred to as the

“Director.”

 11It is worth noting that, despite the above concessions, the

Director testified that he did not personally believe that McBane

had stolen the rifle. The Director indicated that he viewed

McBane’s conduct regarding the rifle, essentially, as an

administrative error. He testified further that, had McBane

sought consent to sell the rifle, it would have been granted.

Nonetheless, the jury disagreed with the Director on this point

and properly concluded that McBane’s conduct did indeed

constitute theft.

13

Safety Director10 testified that McBane did not take the only

lawful step he could have taken to register the gun in his name

– to make it his property – namely, getting a court order to that

effect. The Director further testified that McBane knew he

should have taken that step. The Government also produced

evidence indicating that McBane had received training in the

lawful transfer of firearms and in the proper confiscation and

logging of evidence. McBane himself testified that he was

familiar with the policies operative in the department for dealing

with confiscated property. Finally, the Director testified that, in

spite of his knowledge of proper procedure, McBane proceeded

to sell Suchoza’s rifle to Smith without the consent of the

Director or Suchoza himself, indeed without attempting to get

the consent of either.11 All of the above evidence is probative of

the finding that McBane knowingly stole the rifle and sold it.
 12In McLaughlin, we dealt with the materiality provision not

of § 1001, but of 29 U.S.C. § 439(b) (false statements of

material fact or failure to disclose a material fact in the context

of reporting requirements for labor organizations). McLaughlin,

386 F.3d at 551. That said, analysis of the two materiality

14

 Applying the relevant language from § 922(j), and

evaluating the evidence in the light most favorable to the

Government, Smith’s testimony – combined with the testimony

of the Director and the admissions and testimony of McBane

himself – quite reasonably could be construed as proof that

McBane sold a stolen rifle that he knew or should have known

was stolen. We hold that substantial evidence supports the

jury’s verdict that McBane sold a stolen rifle to Gerald Smith in

violation of 18 U.S.C. § 922(j).

B.

We now turn to the jury’s finding that McBane’s false

statements to the FBI Special Agents were material. The

Supreme Court articulated the definition of “materiality” under

18 U.S.C. § 1001 in United States v. Gaudin, 515 U.S. 506, 512

(1995): To be “material,” “[t]he statement must have a natural

tendency to influence, or [be] capable of influencing, the

decisionmaking body to which it is addressed.” We

acknowledged and applied that precise language in United

States v. McLaughlin, 386 F.3d 547, 553 (3d Cir. 2004).12 Thus,
provisions is identical, and we treated the two as

interchangeable. See id. at 554 (quoting the Sixth Circuit’s

interpretation of § 1001 to reinforce our interpretation of §

439(b)).

15

the language of the standard for materiality is well settled. It is

also clear that a statement may be material even if no agency

actually relied on the statement in making a decision. See, e.g.,

In re Cohn, 54 F.3d 1108, 1114 (3d Cir. 1995). Equally clear is

that a statement is material if it is capable of influencing a

particular decision of the agency in question. See McLaughlin,

386 F.3d at 553-54. The dispositive question on this issue is

whether the test for “materiality” necessarily requires that a false

statement be capable of influencing an actual, particular

decision of the agency at issue, or whether the test requires only

that a statement be of a type that would naturally tend to

influence a reasonable decisionmaking agency in the abstract.

McBane argues that because the FBI’s investigation was

essentially complete when the Agents spoke to McBane about

the guns, his false statements added nothing. As such, the

statements were not “material” because they were not capable

of influencing the particular decisions or actions taken by the

FBI Agents in this case. The Government concedes that

McBane’s false statements did not influence and were not

capable of influencing the decisions or actions of the particular

Agents to whom McBane made those statements. The

Government counters, however, that McBane’s false statements
16

were still material because they were of a type that would

naturally tend to influence a reasonable decisionmaker.

Though we acknowledge that a false statement that

actually affects or is capable of affecting a specific decision by

an agency makes for an easier materiality determination, we

agree with the Government that both the language of the

materiality standard and the decisions applying that standard

require only that the false statement at issue be of a type capable

of influencing a reasonable decisionmaker. The language of the

materiality standard indicates that a statement is material if it has

“a natural tendency to influence, or is capable of influencing,

the decisionmaking body to which it is addressed.” Gaudin, 515

U.S. at 512 (emphasis added). In our view, the phrase “natural

tendency” connotes qualities of the statement in question that

transcend the immediate circumstances in which it is offered and

inhere in the statement itself.

Supreme Court precedent supports this interpretation of

the materiality language. United States v. Kungys, 485 U.S. 759

(1988), provides the clearest interpretation of the standard for

materiality at the Supreme Court level. Specifically interpreting

the phrase “natural tendency to influence,” Justice Scalia’s

opinion for the Court stated that, rather than letting the “infinite

variety of factual patterns that may emerge” around a statement

drive the materiality question, the “safer” method is “to fix as

our guide the central object of the inquiry: whether the

misrepresentation or concealment was predictably capable of

affecting, i.e., had a natural tendency to affect, the official
17

decision.” Id. at 771 (emphasis added). In other words, the

Court judged the relevant inquiry to be whether the falsehood

was of a type that one would normally predict would influence

the given decisionmaking body.

Brogan v. United States, 522 U.S. 398 (1988), provides

further support for the view that materiality does not turn on

whether the FBI believed McBane’s statements or whether they

influenced the investigation. Interpreting an earlier version of

18 U.S.C. § 1001, the Supreme Court stated:

It could be argued, perhaps, that a disbelieved

falsehood does not pervert an investigation. But

making the existence of this crime turn upon the

credulousness of the federal investigator (or the

persuasiveness of the liar) would be exceedingly

strange; such a defense to the analogous crime of

perjury is certainly unheard of.

Id. at 402 (emphasis in original). The Court continued that the

possibility of “perversion of function . . . exists whenever

investigators are told a falsehood relevant to their task.” Id. at

402 (emphasis added).

Additionally, our own decisions have affirmed the

Government’s position on materiality, albeit not in the § 1001

context. In In re Cohn, we cited Kungys for the proposition,
18

regarding “materially false” disclosures in the bankruptcy

context, that “a statement can still be material if it is so

substantial that a reasonable person would have relied upon it,

even if the creditor did not in fact rely upon it in the case at

hand.” In re Cohn, 54 F.3d at 1114 (first emphasis added).

Similarly, in McLaughlin, after citing In re Cohn for the

proposition that actual reliance on the statement is unnecessary

to establish materiality, we stated that “the relevant inquiry is

whether the false information is of the type that is capable of

influencing a decision by an agency . . . .” McLaughlin, 386

F.3d at 554 (emphasis added) (internal quotation marks

omitted).

Other courts of appeals that have had occasion to

interpret the materiality standard have reached the same

conclusion. Most clearly, the Ninth Circuit, citing and

discussing the above language from Kungys in United States v.

Service Deli, Inc., 151 F.3d 938 (9th Cir. 1998), indicated that

the “test [for materiality] is the intrinsic capabilities of the

statement itself, rather than the possibility of the actual

attainment of its end as measured by collateral circumstances.”

Id. at 941 (emphasis in original) (internal quotation marks

omitted).

Similarly, in United States v. Edgar, 82 F.3d 499 (1st Cir.

1996), the First Circuit applied an objective materiality test in a

case with important factual similarities to the instant appeal: 

A statement is material if it has a natural tendency
19

to influence or is capable of influencing a

government function. . . . Edgar argues that

because the decision not to grant him [federal

workers’ compensation] benefits had already

been made and because his forms were filed late,

his failure to set forth his self-employment was

not material. However, the standard is not

whether there was actual influence, but whether

[the statement or omission] would have a

tendency to influence. The district director of the

OWCP testified that on a claim for disability,

whether one may work or has worked has

considerable influence on the amount of benefits

warranted. Thus, the district court did not err in

finding Edgar’s false statements to be material.

Id. at 510 (emphasis added).

We conclude that McBane’s false denial of moving or

selling the guns involved statements that would normally be

capable of influencing a criminal investigation. McBane not

only denied stealing or selling the guns himself, but said that the

guns had never been out of police custody, i.e., that no one had

ever stolen or sold them. He also volunteered to show the guns

to the agents, which he subsequently did. Such

misrepresentations, under normal circumstances, could cause

FBI agents to re-direct their investigation to another suspect,

question their informant differently or more fully, or perhaps

close the investigation altogether. In fact, as the Government
 13McBane originally raised, and the parties briefed, the issue

of McBane’s entitlement to a sentencing reduction under the

Guidelines for acceptance of responsibility. We subsequently

ordered the parties to address whether remand for resentencing

under Booker was appropriate. Because we will remand the

case for post-Booker resentencing, we need not evaluate the

District Court’s finding that an “acceptance of responsibility”

sentence reduction was not warranted.

20

argues, McBane’s own testimony indicated that he hoped and

expected that his false statements would have precisely those

effects. McBane testified that he lied to the Agents so that the

investigation would turn “to other people, whether within my

department or elsewhere. . . . They would leave me alone.”

We hold that substantial evidence supports the jury’s

finding that McBane’s false statements to the FBI were material.

III.

Finally, we must decide whether McBane’s case should

be remanded for resentencing pursuant to the Supreme Court’s

decision in United States v. Booker. We conclude that

McBane’s case should be remanded.13

In United States v. Davis, 407 F.3d 162, 165 (3d Cir.

2005), we announced our intention to remand for resentencing
21

those cases in which sentence was imposed under the preBooker mandatory guidelines regime, was enhanced pursuant to

judge-found facts (other than the existence of prior convictions),

and was challenged on direct appeal:

Furthermore, as noted by the Court of Appeals for

the Sixth Circuit, “[w]e would be usurping the

discretionary power granted to the district courts

by Booker if we were to assume that the district

court would have given [defendant] the same

sentence post-Booker.” Failure to remand for

resentencing, therefore, could adversely affect the

fairness and integrity of the proceedings.

Accordingly, defendants sentenced under the

previously mandatory regime whose sentences are

being challenged on direct appeal may be able to

demonstrate plain error and prejudice. We will

remand such cases for resentencing.

Id. at 165. As the above language from Davis suggests, in order

to qualify for resentencing under Booker, a defendant must

object to his sentence at sentencing and reassert his argument on

direct appeal. See U.S. v. Ordaz, 398 F.3d 236, 239 (3d Cir. 

2005).

McBane preserved the issue of sentencing at both the trial

and sentencing stages, raised a challenge to his sentence on
appeal, and raised the Booker issue before us by proper

supplemental letter-motion to the Court. The Government made

no response by supplemental letter or brief on the issue of a

remand under Booker. The District Court concluded that

McBane’s offense level under the Guidelines should include

enhancements of two points for his role in the offense and two

points if the rifle was stolen. McBane asserts that because the

former enhancement “was not charged as part of the

indictment,” i.e., the factual predicate for the enhancement was

found by the Court, not by the jury, it is subject to Booker

scrutiny and requires remand pursuant to our decision in Davis

regarding post-Booker cases. We agree.

IV.

For the foregoing reasons, we will affirm the judgment

of conviction on both the stolen gun sale and false statement

charges under 18 U.S.C. §§ 922(j) and 1001, respectively. 

We will vacate McBane’s sentence, and we will remand the

case for resentencing.